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IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. MMO No. 784 of 2019
.
Date of Decision: January 3, 2020
Rahul Thakur …Petitioner.
Versus
State of Himachal Pradesh
another ..Respondents.
Coram:
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Mr. Vishwa Bhushan, Advocate.
For the Respondents: Mr.S.C. Sharma, Additional Advocate
General, with M/s Kamal Kant, Kuldeep
Chand Thakur Ms.Seema Sharma,
Deputy Advocate Generals, for
respondent No.1-State.
Mr. Ashok Kumar, Advocate, for
respondent No.2.
Vivek Singh Thakur, J. (oral)
This petition has been preferred under Section 482
of the Code of Criminal Procedure (hereinafter referred to as
‘SectionCr.PC’), by petitioner Rahul Thakur for quashing FIR No. 46 of
2019 dated 02.11.2019, registered in Women Police Station,
Mandi, District Mandi, H.P., under Section 376 of the Indian Penal
Code (hereinafter referred to as ‘SectionIPC’ in short) and the
consequent criminal proceedings arising thereto.
1
Whether reporters of the local papers may be allowed to see the judgment?
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2. Petitioner Rahul Thakur and respondent No.2 Prem
Lata are present in person in the Court today, who have been
identified by their respective learned counsel. Their statements,
.
on oath, have also been recorded separately today in the Court.
3. In her statement complainant-respondent No.2 Prem
Lata has stated that her first meeting with petitioner was at Bus-
Stand Mandi and at that time, she was pursuing her Graduation
Course from Government College, Mandi and petitioner was
serving as a Probationary Officer in Gramin Bank. She has further
stated that after having friendship, they had developed intimacy
and decided to marry each other and they had also taken their
parents in confidence to materialize their proposal and for
assurance of the marriage, they had also developed physical
relations, however, thereafter, petitioner had shown his
reluctance to marry her, which caused mistrust about relations
and lead to lodging of FIR against the petitioner. She has further
stated that later on her family as well as family of petitioner had
clarified that fluctuation in behaviour of petitioner was temporary
and in fact he was in the process of taking decision to solemnize
marriage and was thinking about future thereafter and that after
lodging of FIR, petitioner was arrested and was released on bail
on 03.12.2019 and despite lodging of FIR against petitioner by
her, he not only agreed to marry with her but with the consent of
parents, they have solemnized marriage on 13.12.2019 in Tarna
Mata Temple, Mandi and thereafter, marriage has also been
registered at Sl. No.32 in Marriage Register maintained by Gram
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Panchayat Rakhoh. She has further stated that her name has
also been entered in the Family Register of the said Panchayat as
a wife of petitioner and since then, she is residing alongwith
.
petitioner in the house of her in-laws and they are living happy
married life and because of subsequent conduct of the petitioner,
she had developed full faith that he will maintain her properly
and will not, in any manner, cause harm to her and her interests
and believing him she does not want to continue criminal
proceeding against him as it would be actually harming her and
her interest and also their family life. She has further stated that
she has deposed in this Court, out of her free will, consent and
without any external pressure, coercion or threat of any kind.
4. In his statement, petitioner Rahul Thakur has stated
that he has heard the statement made by complainant-
respondent No.2 Prem Lata and has endorsed the same to be
true and correct and had that he married her with his free will,
consent and without any pressure, threat or coercion and in fact,
he had never intended not to marry her, but there was some
fluctuation in his thoughts, which were shared with her and such
communication had caused mistrust in their relations leading to
lodging of FIR. He has further stated that he has realized his
mistake and has taken steps to rectify the mistake and has also
undertaken to keep his wife-respondent No.2 Prem Lata happy
and to maintain her properly in all respects. He has further
stated that he has deposed in this Court, out of his free will,
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consent and without any external pressure, coercion or threat of
any kind.
5. Considering peculiar facts and circumstances of
.
present case, petition has been opposed on behalf of respondent
No. 1-State on the ground that it is not maintainable as in
investigation a case under Section 376 IPC is made out and on
the basis of challan presented in Court trial is pending
consideration of Court. It is also contended on behalf of
respondent/State that petitioner is not entitled to invoke inherent
jurisdiction of this Court to exercise its power, keeping in view
the nature of crime, for quashing of FIR with respect to an
offence heinous in nature and not compoundable under Section
320 Cr.P.C.
6. It is a case of peculiar nature where
complainant/respondent No.2 and accused/petitioner are now
residing under one and same roof as husband and wife. In fact it
appears from their statements, recorded on oath, that petitioner
without taking final decision, had developed intimacy with
respondent No.2 with intention to marry her, which had led to
physical relations with each other, however, thereafter, there
was fluctuation in mind of petitioner which was communicated by
him to respondent No.2 whereupon, and rightly so, respondent
No.2 had gathered impression that petitioner was not inclined to
marry her and had developed physical relations with her in
deceitful manner and had cheated her and, consequently, it had
resulted into registration of FIR against petitioner. However,
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thereafter, on removal of misunderstanding, they have
solemnized marriage on 13.12.2019 in Tarna Mata Temple,
Mandi, H.P., in accordance with Hindu rites and rituals and now
.
respondent No.2 is residing with in-laws along with her
husband/petitioner and has prayed for quashing of FIR and
criminal proceedings pending against her husband for
betterment of her life as well as welfare of her husband and in-
laws.
7. Three Judges Bench of the Apex Court in Gian Singh
Vs. State of Punjab and Ors. reported in (2012) 10 SCC 303 ,
explaining that High Court has inherent power under Section 482
of the Code of Criminal Procedure with no statutory limitation
including Section 320 Cr.PC, has held that these powers are to
be exercised to secure the ends of justice or to prevent abuse of
process of any Court and these powers can be exercised to
quash criminal proceedings or complaint or FIR in appropriate
cases where offender and victim have settled their dispute and
for that purpose no definite category of offence can be
prescribed. However, it is also observed that Courts must have
due regard to nature and gravity of the crime and criminal
proceedings in heinous and serious offences or offence like
murder, rape and dacoity etc. should not be quashed despite
victim or victim family have settled the dispute with offender.
Jurisdiction vested in High Court under Section 482 Cr.PC is held
to be exercisable for quashing criminal proceedings in cases
having overwhelming and predominatingly civil flavour
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particularly offences arising from commercial, financial,
mercantile, civil partnership, or such like transactions, or even
offences arising out of matrimony relating to dowry etc., family
.
disputes or other such disputes where wrong is basically private
or personal nature where parties mutually resolve their dispute
amicably. It was also held that no category or cases for this
purpose could be prescribed and each case has to be dealt with
on its own merit but it is also clarified that this power does not
extend to crimes against society.
8. Ther Apex Court in Parbatbhai Aahir alias
Parbathbhai Bhimsingbhai Karmur and others vs. State of
Gujarat and another, (2017) 9 SCC 641 , summarizing the
broad principles regarding inherent powers of the High Court
under Section 482 Cr.P.C., has recognized that these powers are
not inhibited by provisions of Section 320 Cr.P.C.
9. The Apex Court in case SectionNarinder Singh and others
vs. State of Punjab and others reported in (2014)6 SCC 466
and also in SectionState of Madhya Pradesh vs. Laxmi Narayan and
others (2019) 5 SCC 688 has summed up and laid down
principles by which the High Court would be guided in giving
adequate treatment to the settlement between the parties and
exercise its power under Section 482 of the Code while accepting
the settlement and quashing the proceedings or refusing to
accept the settlement with direction to continue with criminal
proceedings.
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10. No doubt Section 376 IPC is not compoundable
under Section 320 Cr. P.C. However, as explained by Hon’ble
Supreme Court in Gian Singh’s, Parbatbhai and Narinder Singh’s
.
cases supra, power of High Court under Section 482 Cr.PC is not
inhibited by the provisions of Section 320 Cr.P.C. and FIR as well
as criminal proceedings can be quashed by exercising inherent
powers under Section 482 Cr.PC, if it is warranted in given facts
and circumstances of the case for ends of justice or to prevent
abuse of the process of any Court, even in those cases which are
not compoundable where parties have settled the matter
between themselves.
11. In present case, respondent No.2/complainant also
appeared in person in this Court and her statement, as discussed
in para 3 supra, has also been recorded in this Court, wherein
she has expressed her desire to close the proceedings against
the petitioner.
12. It is true that as a matter of principle, quashing of
FIR on the basis of compromise should not be permitted in case
of heinous crime like Section 376 IPC for the reason that said
crime is against the society having adverse impact on it and also
that possibility of compromise under any kind of pressure, threat
or coercion cannot be ruled out in such cases as victims normally
belong to the weaker class. But in given facts and circumstances
of the present case, where offence of rape is made out because
of the fact that a young girl, apprehending cheating has lodged
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FIR and now again residing in her matrimonial house with
petitioner-accused, it cannot be compared with other cases.
13. Observation of the Coordinate Bench of this Court in
.
similar case decided on 12.01.2017 in Cr.MMO No. 385 of 2016,
titled as Chander Vir Kaundal vs. State of H.P., would also be
relevant, where it is recorded that looking at the case from
another angle, since the petitioner has solemnized marriage with
respondent, obviously, there is no possibility of her supporting
the charge in case the petitioner is put to trial. Therefore, in such
circumstances, the continuation of criminal proceedings would
only cause untoward torture or harassment apart from creating
undue social and psychological pressure upon the private parties
and it will be an extremely sad story in case complainant is
called in the witness box to depose against the accused, who is
none other than her husband.
14. In present case also, deposition of victim in the
Court in consonance with prosecution case would lead to landing
her husband in jail and pushing her in pitch dark whereas
retracting from her earlier version may put her in unnecessary
trouble.
15. Learned counsel for the accused-petitioner has also
referred to judgments passed by the Coordinate Benches in
Cr.MMO No. 301 of 2018, decided on 24.04.2019, titled as SectionAsha
Devi others vs. State of Himachal Pradesh another; Cr.MMO
No. 399 of 2018, decided on 18.09.2018, titled as SectionKajal another
vs. State of Himachal Pradesh another; Cr.MMO No. 244 of
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2019, decided on 07.05.2019 titled as SectionX vs. State of H.P.
others; Criminal Miscellaneous (Main) No. 139 of 2018, decided
on 26.5.2018, titled SectionSahil Chaudhary vs. State of H.P. and
.
another; and Cr.MMO No.41 of 2019, titled as SectionRavi Goyal and
another vs. State of Himachal Pradesh others, decided on
24.09.2019 wherein FIRs registered under Section 376 IPC read
with provisions of POCSO Act have been quashed in similar
circumstances where victims and accused had married to each
other.
16. The ratio of law laid down by the Apex Court on the
issue of permitting the compromise and quashing of FIR in all
cases, the Courts must consider the interest of public at large
and the offence offending the Society at large should not be
permitted to be compromised and quashing of FIR or criminal
proceedings on the basis of such compromise should not be
permitted. Present case is somewhat different from general
category, as in present case, it is not on the basis of compromise
that quashing of FIR has been sought for, but it is a case where
interest of victim is also involved and welfare of victim appears
to be in closing criminal proceedings as she has proclaimed
herself to be wife of accused. Now in the facts and circumstances
of the case, this case cannot be termed as a case subjecting the
victim-complainant forcibly to illicit sexual intercourse. Further,
it is a peculiar kind of case where there is a conflict between
interest of victim and societal interest. Interest of victim is not
purely private in nature as rehabilitation and survival of victim is
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another issue which involves public interest because to ensure
rehabilitation and provide resources for survival of victim is also
responsibility of society. Considering entire facts and circumstances
.
of the case, in my opinion balance lies in favour of the prayer of the
victim.
17. Family is a primary unit of society, which gives
protection to all family members. Therefore, there is always
endeavour to save the family. By saving a family, we definitely save
the fabric of society and thus any endeavour to save the family is
also interest of society. Therefore, in present case, there is conflict
of interest not only between victim and societal interest but also
amongst divergent societal interest i.e. to continue proceedings for
commission of an offence having adverse impact on the society
and to save the family in larger interest of society.
18. SectionIn Madan Mohan Abbot vs. State of Punjab, (2008)
4 SCC 582, the Hon’ble Supreme Court emphasized and advised
that in the matter of compromise in criminal proceedings, keeping
in view of nature of this case, to save the time of the Court for
utilizing to decide more effective and meaningful litigation, a
commonsense approach, based on ground realities and bereft of the
the technicalities of law, should be applied.
19. Therefore, in peculiar facts and circumstances of the
present case, I am of the considered opinion that interest of justice
shall be served in quashing the FIR as well as criminal proceedings
pending against accused-petitioner.
20. Keeping in view the ratio of law laid down by the
Hon’ble Apex Court and considering peculiar facts and
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circumstances of the case in its entirety, present petition is allowed
and matter is permitted to be compounded. Consequently FIR No.
46 of 2019 dated 02.11.2019, registered in Women Police Station,
.
Mandi, District Mandi, H.P., is quashed. Consequent to quashing of
FIR, criminal proceedings initiated against accused-petitioner in
pursuance thereto, are also quashed.
Petition stands disposed of in above terms, so also
pending application(s), if any.
(Vivek Singh Thakur),
Judge.
January 3, 2020
(Purohit)
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